92 Decision Citation: BVA 92-01840
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-41 155 ) DATE
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THE ISSUES
Entitlement to a rating in excess of 40 percent for the
residuals of a triple arthrodesis of the left ankle.
Entitlement to a rating in excess of 10 percent for left
knee and hip strain, including entitlement to separate
ratings for knee and hip involvement.
Entitlement to an effective date earlier than August 29,
1990, for a grant of service connection for left knee and
hip strain.
REPRESENTATION
Appellant represented by: Department of Veterans Affairs,
Wisconsin
ATTORNEY FOR THE BOARD
Harold A. Beach, Associate Counsel
INTRODUCTION
The veteran, who is the appellant in this case, served on
active duty from June 23, 1966 to June 1, 1967.
This matter came before the Board of Veterans' Appeals
following decisions by the Department of Veterans Affairs
(formerly the Veterans Administration, hereinafter referred
to as VA) Regional Office (hereinafter referred to as RO) in
Milwaukee, Wisconsin.
On January 14, 1967, the veteran sustained a left foot and
ankle injury, as the result of a grenade explosion. On
June 16, 1967, he underwent triple arthrodesis of the left
ankle. Subsequently, the RO assigned a 100 percent rating
for convalescent purposes. 38 C.F.R. 4.30. That rating
became effective on June 2, 1967, the day following his
separation from service. Following the period of
convalescence, the current 40 percent rating was assigned
under 38 C.F.R. Part 4, Diagnostic Code 5270. As it has
continuously been in effect for more than 20 years, it is
now "protected" under 38 U.S.C. 110. That is, it may not be
reduced absent a showing that it was based on fraud.
On April 9, 1990, the veteran requested reevaluation of his
service-connected residuals of a shell fragment wound of the
left ankle. On August 1, 1990, the RO confirmed and
continued the 40 percent rating. On September 20, 1990, the
veteran requested service connection for left knee and hip
strain, which he contended was due to his service-connected
left ankle disorder. On March 15, 1991, service connection
for left knee and hip strain was granted, and a 10 percent
rating was assigned, effective August 29, 1990.
The veteran disagreed with the denial of an increased rating
for his service-connected left ankle disorder and with the
amount of the rating assigned for his left knee and hip
strain. He also disagreed with the effective date of
service connection for left knee and hip strain. On
June 10, 1991, his notice of disagreement was received. On
July 2, 1991, the RO confirmed and continued the disability
evaluations for his left lower extremity. On July 10, 1991,
he was mailed a statement of the case, and on August 13,
1991, his substantive appeal (VA Form 1-9) was received. On
August 21, 1991, his representative, the Wisconsin
Department of Veterans Affairs, submitted a statement on his
behalf. Thereafter, the case was transferred to the Board
of Veterans' Appeals, where it was docketed on August 28,
1991.
The Board has decided that a preliminary issue to be
resolved is whether the service-connected left knee and hip
strain should be separately rated. The issues certified for
appeal will be addressed in the REMAND at the end of the
decision.
This appeal was initially completed by the Board section on
December 5, 1991. The Board, in its deliberations, applied
the law in effect at that time. This included the
provisions of Rowe v. Derwinski, U.S. Vet. App. No. 90-1326
(Nov. 27, 1991). Subsequently, the United States Court of
Veterans Appeals (the Court) on reconsideration vacated the
November 27, 1991, decision in Rowe by a January 3, 1992,
memorandum decision by Chief Judge Nebeker.
As the Court has clearly held in Tobler v. Derwinski, U.S.
Vet. App. No. 91-1366 (Dec. 6, 1991, vacating, on
reconsideration, the Court's decision of October 28, 1991),
the decisions of the Court are binding upon the Board from
the date on which they are issued. The January 3, 1992,
decision of the Court in Rowe has the effect of returning
the law to the status which existed prior to the issuance of
the November 27, 1991 decision which was vacated.
Accordingly, the instant case on appeal was removed from the
administrative processing of the case and returned to the
Board section for review in light of Chief Judge Nebeker's
January 3, 1992, decision.
CONTENTIONS OF APPELLANT ON APPEAL
It is contended by and on behalf of the veteran that his
left knee and left hip disorders should be rated separately
as they affect different parts of the body.
DECISION OF THE BOARD
For the reasons and bases set forth below, it is the
decision of the Board that separate disability evaluations
for left knee and hip disorders are warranted.
FINDING OF FACT
The veteran's left knee and hip strain involve distinct
anatomical areas.
CONCLUSION OF LAW
Separate disability evaluations are warranted for left knee
strain and for left hip strain. 38 C.F.R. 4.25(b)
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran seeks a rating in excess of 10 percent for his
service-connected left knee and hip strain. In so doing, he
maintains that separate disability evaluations should be
assigned for each disorder. Although both disorders are the
result of his service-connected left ankle disability, they
clearly affect different parts of the body. According to
38 C.F.R. 4.25(b), such disorders are to be rated separately.
ORDER
Separate disability evaluations are granted for the left
knee disorder and for the left hip disorder.
REMAND
In light of the decision to grant separate disability
evaluations for the veteran's left knee and left hip strain,
the case must be REMANDED to the RO for assignment of the
individual ratings.
After assigning the individual ratings, the RO must consider
the issue of an increased rating for the service-connected
residuals of a triple arthrodesis. Particular attention
should be given to the origin and course of that disorder.
38 C.F.R. 4.1, 4.2, 4.41, and 4.42. Schafrath v. Derwinski
U.S. Vet. App. No. 89-114 (November 26, 1991) (copy
attached). The RO must also consider the fact that the 40
percent evaluation for the veteran's left ankle disorder is
the highest schedular rating available under 38 C.F.R.
Part 4, Diagnostic Code 5270. In such situations,
extraschedular criteria are potentially applicable
(38 C.F.R. 3.321(b)(1)). "Where a VA regulation is made
potentially applicable through the assertions and issues
raised in the record, the Board's refusal to acknowledge and
consider that regulation is 'arbitrary, capricious, and an
abuse of discretion,' and 'not in accordance with the law,'
and must be set aside as such." Schafrath slip op. at 6.
Accordingly, 38 C.F.R. 3.321(b)(1) is for application.
If, after the foregoing development, the veteran continues
to disagree with any or all of the RO's decisions, he and
his representative must be furnished a supplemental
statement of the case and afforded an opportunity to
respond. 38 C.F.R. 19.129(c). Thereafter, if in order, the
case should be returned to the Board for further appellate
consideration. By this REMAND, the Board intimates no
opinion as to the final disposition of any issue. The
purpose is to ensure due process of law. The veteran need
take no action unless he is notified.
The issue of an earlier effective date for service
connection for left hip strain and left knee strain will be
held in abeyance pending the requested development.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
ANTHONY FAVA H. H. CLARK
38 U.S.C. § 7102(a)(2)(A) (1989) (formerly § 4002(a)(2)(A),
recodified in 1991) permits a Board of Veterans' Appeals
Section, upon direction of the Chairman of the Board, to
proceed with the transaction of business without awaiting
assignment of an additional Member to the Section when the
Section is composed of fewer than three Members due to
absence of a Member, vacancy on the Board or inability of
the Member assigned to the Section to serve on the panel.
The Chairman has directed that the Section proceed with the
transaction of business, including the issuance of
decisions, without awaiting the assignment of a third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. 7266 (formerly
38 U.S.C. 4066), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or
benefits, sought on appeal is appealable to the United
States Court of Veterans Appeals within 120 days from the
date of mailing of notice of the decision, provided that a
Notice of Disagreement concerning an issue which was before
the Board was filed with the agency of original jurisdiction
on or after November 18, 1988 (see sec. 402 of the Veterans'
Judicial Review Act (Pub. L. 100-687)). The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have
received is your notice of the action taken on your appeal
by the Board of Veterans' Appeals.
Under 38 U.S.C. 7252 (formerly 38 U.S.C. 4052), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Veterans Appeals. This remand is
in the nature of a preliminary order and does not constitute
a decision of the Board on the merits of your appeal.
(NOTE: The section numbers of Title 38, United States Code,
were changed in 1991. The new section numbers are given
above, followed, in parentheses, by "formerly 38 U.S.C." and
the old section numbers in effect prior to the 1991
revisions. The initials C.F.R. refer to the Code of Federal
Regulations.)